State v. Frausto

• Court: Supreme Court of Tennessee
• Writing for the Court: Cornelia A. Clark, J.
• Citation: 463 S.W.3d 469
• Decision Date: 01 April 2015
• Parties: State of Tennessee v. Dominic Eric Frausto

463 S.W.3d 469

State of Tennessee
v.
Dominic Eric Frausto

Supreme Court of Tennessee, AT KNOXVILLE.

January 8, 2015 Session
Filed April 1, 2015

Robert L. Jolley, Jr. and Megan A. Swain (on appeal), Knoxville, Tennessee, and Dale Potter, Assistant District Public Defender (at trial), Jacksboro, Tennessee, for the appellant, Dominic Eric Frausto.

Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; Leslie E. Price ; Senior Counsel Criminal Justice Division; Jared Ralph Effler, District Attorney General; and Tracy Tipton Jenkins, Assistant District Attorney General, for the appellee, State of Tennessee.

Opinion

Cornelia A. Clark, J., delivered the opinion of the Court, in which Sharon G. Lee, C.J., and Gary R. Wad e , Jeffrey S. Bivins, and Holly Kirby, JJ., joined.

OPINION

Cornelia A. Clark, J.

The dispositive issues in this appeal are: (1) whether the defendant's extrajudicial statement was sufficiently corroborated for purposes of the corpus delicti rule to support his conviction of aggravated sexual battery; and (2) whether deviations from the jury selection procedures prescribed in Tennessee Rule of Criminal Procedure 24 are subject to harmless error review or require automatic reversal without a showing of prejudice. First, we hold that the corpus delicti rule does not apply because the defendant testified at trial and adopted his extrajudicial statement, although he denied one portion of it on cross-examination. Even assuming the corpus delicti rule applies, the trustworthiness of the defendant's extrajudicial statement was sufficiently corroborated by his own testimony and by that of the prosecution witnesses. Second, we hold that deviations from prescribed jury selection procedures are non-constitutional errors subject to harmless error analysis. Such errors require reversal only if a defendant establishes either that the error “more probably than not affected the judgment or would result in prejudice to the judicial process.” Tenn. R.App. P. 36(b). We conclude that the substantial deviations from Rule 24 during the selection of a jury for the defendant's trial resulted in prejudice to the judicial process, which entitles the defendant to a new trial. Accordingly, the judgment of the Court of Criminal Appeals is reversed; the defendant's conviction is vacated; and this matter is remanded to the trial court for a new trial, consistent with this decision.

463 S.W.3d 473

I. Factual and Procedural Background

A. Jury Selection

Dominic Eric Frausto, the defendant, was indicted by a Union County Grand Jury for two counts of rape of a child and two counts of aggravated sexual battery. The case proceeded to trial in the Criminal Court for Union County, with jury selection beginning on August 26, 2009. The record before this Court regarding jury selection is sparse, and defense counsel indicated at oral argument that not all bench conferences between the attorneys and the trial court were transcribed. Nevertheless, the record sufficiently reflects that the trial court initially seated a panel of eighteen prospective jurors for voir dire and then immediately excused one person for cause. Next, the attorneys addressed the jurors, advised them of the nature of the case, and asked some preliminary questions. Afterwards, the trial court advised each side of its right to exercise nine peremptory challenges and stated that the trial would begin when the trial court had thirteen jurors.

Defense counsel objected to the trial court's jury selection process, noting that he had “never been in a situation where [he had] to strike everybody at one time.” The trial court responded that he did not have to strike everybody. Defense counsel stated, “[T]he problem is if I use all of my challenges or if I challenge some more depending on who comes up in the box, then I ... don't know who is coming up.” The trial court responded, “[T]he process is get rid of the ones you don't want. Who might be coming up is completely out of your control....” Defense counsel noted that in his previous experience¹ he had “never had to do more than one strike at a time.”

Defense counsel exercised seven peremptory challenges on the first panel of eighteen prospective jurors. The trial court instructed the eleven remaining jurors to wait in the jury room while another panel of eighteen prospective jurors were seated and questioned. From the second panel of eighteen, the trial court excused one person for cause and also reminded both parties that they could “back strike” any of the eleven prospective jurors from the first panel then waiting in the jury room.

Following voir dire of the second panel, the defendant used his remaining two peremptory challenges, and the State used three of its challenges. Considering both panels, a total of twenty-three prospective jurors remained. The trial judge then announced that he planned to select randomly ten of the remaining prospective jurors and exclude them from service.

Hearing this, defense counsel again objected to the trial court's method of selecting the jury. The trial court responded that the method “ha[d] been accepted statewide.” Defense counsel argued that the method did not allow the parties to determine the twelve or thirteen jurors who would actually decide the case, explaining:

[B]ased on the first round, we're actually voir diring [eighteen], and we have to make enough selections to eliminate that down to ... under [thirteen], otherwise, we don't get to go to another round. And then once we go to the second round, we've then had to use up enough challenges that we only have out of this

463 S.W.3d 474

group a limited number of challenges that's available and then ... you end up with a larger pool than [twelve] or [thirteen,] at which time the [c]ourt then randomly selects instead of the attorneys making the decision who is gonna be sitting in judgment of the defendant in determining guilt or innocen[ce]. The [c]ourt's procedure is that it gets to select, and we think that's improper.

After excusing the jury, the trial court asked defense counsel to explain how his client would be prejudiced by this method of jury selection. Defense counsel stated:

The problem I've got is, your Honor, the first [eleven] that's left on the panel are not gonna be the [eleven] people that are gonna be the first [eleven] people in this box, it's gonna be a random selection by the [c]ourt. And if the first [eleven are] gonna be who is here and then the [c]ourt's gonna take the next two people and put with it, that's one thing, but to take and pick [twenty-three] and then the [c]ourt randomly picks out of those [twenty-three], that's not a panel picked by the defendant or by the State, that's a panel picked by the [c]ourt.

The trial judge responded that the parties were not entitled to pick jurors, but rather, were only entitled to exclude jurors, that he had used this method of jury selection “for years,” and that the method had been accepted throughout Tennessee. Nevertheless, the trial court advised defense counsel that if he could produce “some law” indicating that the trial court's method was “wrong,” the trial court would “go with” defense counsel. Although defense counsel was unable to produce any contrary authority at that time, he preserved the objection for the record. The trial court then proceeded by randomly selecting and excusing ten prospective jurors. The thirteen remaining jurors served as the jury at the defendant's trial.

B. Trial Proof

The defendant was charged with four offenses: two counts of rape of a child, both alleged to have occurred at the defendant's residence on Gray Road, and two counts of aggravated sexual battery, both alleged to have occurred at the victim's residence on Maynardville Highway.² The proof offered at trial demonstrated that Lenora Balogh dated the defendant for approximately six months, from February to July 2008. During this time, her two children, M.B., the victim of the alleged sexual offenses,³ and A.B., were seven and two years old respectively. Ms. Balogh met the defendant when he lived at her apartment complex on Maynardville Highway. In March 2008, the defendant moved to another residence on Gray Road, which

463 S.W.3d 475

he shared with his mother, aunt, and cousin. For the remainder of her relationship with the defendant—March to July 2008—Ms. Balogh and her children stayed at the Gray Road residence five or six nights a week. The couple and the children all slept in the living room. Ms. Balogh and the defendant slept on a pallet on the floor; M.B. slept on the couch; and A.B. slept on the love seat. Ms. Balogh acknowledged that she and the defendant occasionally had sex in the living room while the children were sleeping, but she maintained that the children always remained asleep. Ms. Balogh admitted, however, that M.B. had walked into the living room on one occasion while she was performing oral sex on the defendant. Ms. Balogh denied that M.B. saw...